Guardians Ad Litem: Confidentiality and Privilege

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Vol. 33, 2021 Guardians Ad Litem 517

Guardians Ad Litem: Confidentialityand Privilege

ByJacqueline M. Valdespino and Laura W. Morgan*

IntroductionEvery state1 provides for the appointment of a guardian

* Jacqueline M. Valdespino practices in Miami, Florida and can bereached at [email protected].

Laura W. Morgan is the owner/operator of Family Law Consulting, Am-herst, Massachusetts providing research and writing to family law attorneys na-tionwide. Laura may be reached at [email protected].

Jacquie and Laura would like to thank Dana E. Prescott, Prescott, Jamie-son, & Murphy Law Group, LLC, Saco, Maine, for his comments andsuggestions.

1 Alabama: ALA. CODE § 26-2A-52 (2020); Alaska: ALASKA STAT.§ 25.24.310 (2020); Arizona: 17B ARIZ. REV. STAT. RULES FAM. LAW PROC., r.10 (2020); Arkansas: Kimmons v. Kimmons, 613 S.W.2d 110 (Ark. Ct, App.1981); California: CAL. FAM. CODE § 3111 (2020) (child custody evaluator);Colorado: COLO. REV. STAT. § 14-10-116 (2020); Connecticut: CONN. GEN.STAT. § 45a-132 (2020); Delaware: DEL. CODE tit. 13, § 701 (2020); District ofColumbia: D.C. CODE § 16-914 (2020); Florida: FLA. STAT. § 61.401 (2020);Georgia: GA. CODE § 19-9-3 (2020); Hawaii: HAW. REV. STAT. § 551-2 (2020);Idaho: IDAHO CODE § 32-704 (2020); Illinois: 750 ILL. COMP. STAT. § 5/506(2020); Indiana: IND. CODE § 31-9-2-50 (2020); Iowa: IOWA CODE § 598.12(2020); Kansas: KAN. STAT. ANN. § 38-2205 (2020); Kentucky: KY. REV. STAT.ANN. § 625.041 (2020); Louisiana: LA. STAT. ANN. § 9:345 (2020); Maine: ME.REV. STAT. ANN. tit. 4, § 1507 (2020); Maryland: MD. CODE, FAM. LAW, § 1-202(2020); Massachusetts: MASS. GEN. LAWS c. 215, § 56A (2020); Michigan: MICH.COMP. LAWS § 722.24 (2020); Minnesota: MINN. STAT. § 518.165 (2020); Missis-sippi: MISS. CODE § 43-21-121 (2020); Missouri: MO. STAT. ANN. § 452.423(2020); Montana: MONT. CODE § 40-4-205 (2020); Nebraska: NEB. REV. STAT.§ 42-358 (2020), § 43-272.01 (2020); Nevada: NEV. REV. STAT. § 126N.101(2020); New Hampshire: N.H. REV. STAT. § 461-A:16 (2020); New Jersey: N.J.STAT. ANN. § 9:2-4 (2020), N.J. R. CH. DIV. FAM. PT. r. 5:8B (2020); New Mex-ico: N.M. STAT. ANN. § 40-4-8 (2020), N.M. RULES CIV. P. FOR DIST. CTS. r. 1-053.3 (2020); New York: N.Y. FAM. CT. ACT § 249(a) (2020); North Carolina:N.C. R. CIV. P. r. 17(b)(3) (2020); North Dakota: N.D. CENT. CODE § 14-09-06.4 (2020), § 14-20-47 (2020); Ohio: OHIO REV. CODE § 3109.04 (2020);Oklahoma: OKLA. STAT. tit. 10, § 7700-608 (2020); OKLA. STAT. tit. 43, § 107.3(2020): Oregon: OR. REV. STAT. § 107.425(1, 3) (2020); Pennsylvania: PA. R.


518 Journal of the American Academy of Matrimonial Lawyers

ad litem in a child custody case2 as the court may deem neces-sary.3 Generally, in a child custody case, a guardian ad litem actsas an independent advocate for a minor, representing not thechild’s stated wishes as an attorney would, but rather represent-

CIV. P. r. 1915.11-2 (2020); Rhode Island: R.I. GEN. LAWS § 15-5-16.2(c)(1)(2020); South Carolina: S.C. CODE § 63-3-810 (2020); South Dakota: S.D. CODI-

FIED LAWS § 15-6-17(c) (2020); Tennessee: TENN. CODE § 36-4-132 (2020);Texas: TEX. FAM. CODE § 107.001(b) (2020); Utah: UTAH CODE § 30-3-11.2(2020), § 78A-2-703 (2020); Vermont: VT. STAT. ANN. tit. 15, § 669 (2020), VT.FAM. CT. RULES r. 7 (2020); Virginia: VA. CODE ANN. § 16.1-266 (2020); Wash-ington: WASH. REV. CODE § 26.12.175 (2020); West Virginia: W. VA. CODE

§ 48-9-302 (2020), W. VA. R. PRAC. & P. FAM. CT. 47 (2020); Wisconsin: WIS.STAT. ANN. § 767.407 (2020); Wyoming: Fleet v. Guyette, 466 P.3d 812 (Wyo.2020).

2 For purposes of this article, “child custody case” comprises determina-tions of parentage, legal and joint custody, and allocation of parenting time andresponsibilities. This has been termed “private custody litigation.” CynthiaGrover Hastings, Letting Down Their Guard: What Guardians ad Litem ShouldKnow About Domestic Violence in Child Custody Disputes, 24 B.C. THIRD

WORLD L.J. 283, 288 (2004). This article does not address the use of a guardianad litem in adoption cases, termination of parental rights cases, abuse, neglect,and dependency proceedings, and juvenile justice cases.

3 For a history of the guardian ad litem, see Katherine Hunt Federle &Danielle Gadomski, The Curious Case of the Guardian ad Litem, 36 U. DAY-

TON L. REV. 337, 339-48 (2012) (providing an extensive discussion of history ofthe guardian ad litem dating from Roman times); George S. Mahaffey, Jr., RoleDuality and the Issue of Immunity for the Guardian ad Litem in the District ofColumbia, 4 J.L. & FAM. STUD. 279, 280 (2002) (noting that guardianship policyhas its origins in ancient Greece and Rome, but the approach to it taken bycourts in the United States is based on the English common law and the doc-trine of parens patriae, which was appropriated by the colonies and applied toboth minors and those incapable of caring for themselves in the form of courtappointed guardians); Dana E. Prescott, Inconvenient Truths: Facts and Fric-tions in Defense of Guardians ad Litem for Children, 67 ME. L. REV. 43, 50-53(2014) (historically situating the role of guardian ad litem from 1851); CharlesP. Sherman, The Debt of the Modern Law of Guardianship of Roman Law, 12MICH. L. REV. 124 (1913) (explaining that the concept of appointing a guardianad litem to represent the interest of a minor finds its origins during the time ofthe Roman Empire, when the protector of the minor’s interests was called aspecial curator); Ellen K. Solender, The Guardian Ad Litem: A Valuable Repre-sentation or Illusory Safeguard 2, 7 TEX. TECH. L. REV. 619 (1976) (noting thatthe United States paralleled the English common law in which the king was theprotector of infants and incompetents and could issue a letter patent for theappointment of a guardian). See also Morgan v. Getter, 441 S.W.3d 94, 111-16(Ky. 2014) (containing an extensive discussion of the history of courts utilizingguardians ad litem in custody proceedings and the problems arising from that).



ing the “best interests of the child.”4 The generally accepted dif-

4 See generally Hastings, supra note 2, at 293 (observing that a guardianad litem “is a legal representative appointed by the court to protect a child’sbest interests in litigation before the court.”). See also UNIF. MARRIAGE & DI-

VORCE ACT § 310, 9A Part II U.L.A. 13 (1998); AMERICAN ACADEMY OF MAT-

RIMONIAL LAWYERS, REPRESENTING CHILDREN: STANDARDS FOR ATTORNEYS

FOR CHILDREN IN CUSTODY OR VISITATION PROCEEDINGS 2 (2011).The roles are often confused. See Barbara Ann Atwood, The Uniform Rep-

resentation of Children in Abuse, Neglect and Custody Proceedings Act: Bridg-ing the Divide Between Pragmatism and Idealism, 42 FAM. L.Q. 63, 75 (2008)(“[M]any states routinely appoint lawyers as guardians ad litem without carefuldelineation between the roles.”); Donald N. Duquette & Julian Darwall, ChildRepresentation in America: Progress ReportfFrom the National Quality Im-provement Center, 46 FAM. L.Q. 87 (2012) (tracing the course of the debateover the suitability of these different roles); Victoria Sexton, Wait, Who Am IRepresenting? The Need for States to Separate the Role of Child’s Attorney andGuardian Ad Litem, 31 GEO. J. LEGAL ETHICS 831, 834-35 (2018); see alsoABA, American Bar Association Standards of Practice for Lawyers Represent-ing Children in Custody Cases, 37 FAM. L.Q. 131 (Summer 2003) (noting thatthe term “guardian ad litem” and the role of the guardian ad litem have become“too muddled through different usages in different states, with varyingconnotations”).

The blame for this confusion is hard to place: “Many states do not explic-itly define the required duties and responsibilities of a GAL; as a result, theduties performed by GALs are likely to vary, not only from state to state, butoften even from court to court.” Elizabeth Weyer, Respecting UncustomaryFamily Traditions: Reforming the Role of Guardians Ad Litem, 17 J. GENDER

RACE & JUST. 197, 205 (2014). See also Linda D. Elrod, Raising the Bar forLawyers Who Represent Children: ABA Standards of Practice for CustodyCases, 37 FAM. L.Q. 105, 115–16 (2003) (rejecting outright the term “guardianad litem” because of its inherent ambiguity); Martin Guggenheim, TheAAML’s Revised Standards for Representing Children in Custody and VisitationProceedings: The Reporter’s Perspective, 22 J. AM. ACAD. MATRIM. LAW. 251(2009) (explaining the different models of child representation prescribed bythe AAML, ABA, the National Association of Counsel for Children, and theNational Conference of Commissioners on Uniform State Laws); Raven C.Lidman & Betsy R. Hollingsworth, The Guardian Ad Litem in Child CustodyCases: The Contours of Our Judicial System Stretched Beyond Recognition, 6GEO. MASON L.REV. 255, 256–57 (1998) (noting that a guardian ad litem hasbeen variously defined as: the person appointed by the court to serve as aninvestigator to gather information about the parents and the children and re-port back to the court recommending which parent should have custody; thelawyer appointed to represent the children; an advocate for the “best interests”of the children; a facilitator/mediator; and some combination of the above andmore); see also, e.g., Morgan, 441 S.W.3d at 106 ((“[T]he term ‘guardian adlitem’ is very much a chameleon. According to one commentator, the term is



ference between the child’s attorney and the guardian ad litemwas summarized in Schult v. Schult:5

Typically, the child’s attorney is an advocate for the child,while the guardian ad litem is the representative of the child’sbest interests. As an advocate, the attorney should honor thestrongly articulated preference regarding taking an appeal of achild who is old enough to express a reasonable preference; as aguardian, the attorney might decide that, despite such a child’spresent wishes, the contrary course of action would be in thechild’s long term best interests, psychologically or financially.6

In essence, in its most important role as an advocate for thechild’s best interests, the guardian ad litem is not an attorney perse, but is an investigator and reporter:7

employed in all of the United States’ fifty-six jurisdictions, but in no two ofthem does it have exactly the same meaning.”).

5 699 A.2d 134 (Conn. 1997).6 Id. at 140.7 “Today the guardian ad litem serves at the statutory or common law

discretion of the judge to play an intermediate (and often indeterminate) roleby ferreting out information, gathering evidence, and making recommendationsthat are intended to protect and foster the best interest of the children.” DanaE. Prescott, The Guardian ad Litem in Custody and Conflict Cases: Investigator,Champion, and Referee?, 22 U. ARK. LITTLE ROCK L. REV. 529, 557 (2000). Seealso Barbara Ann Atwood, Representing Children: The Ongoing Search forClear and Workable Standards, 19 J. AM. ACAD. MATRIM. LAW. 183, 190(2005); Marcia M. Boumil et al., Legal and Ethical Issues Confronting Guardianad Litem Practice, 13 J.L. & FAM. STUD. 43, 46 (2011) (“The investigator role isby far the most common role for the GAL.”); Elizabeth R. Ellis, Comment,Whose Role Is It Anyway? Deciphering the Role, Functions, and Responsibilitiesof Representing Children in Custody Matters, 31 J. AM. ACAD. MATRIM. LAW.533, 534 (2019) (“Generally, a GAL is appointed to investigate issues so thatthe court, with as much information as possible, can safeguard the best interestsof the minor child.”); Hollis R. Peterson, In Search of the Best Interests of theChild: The Efficacy of the Court Appointed Special Advocate Model of Guard-ian ad Litem Representation, 13 GEO. MASON L. REV. 1083, 1094 (2005/2006)(describing the investigative function of the guardian ad litem); see also, e.g.,750 ILL. COMP. STAT. § 5/506 (2) (2020) (The GAL “shall investigate the factsof the case and interview the child and the parties.”); MASS. GEN. LAWS ch. 215,§ 56A (2020) (“Any judge of a probate court may appoint a guardian ad litemto investigate the facts of any proceeding pending in said court relating to orinvolving questions as to the care, custody or maintenance of minor childrenand as to any matter involving domestic relations.”); MICH. COMP. LAWS

§ 712A.17d(1)(c) (2020) (The GAL’s duties include “determin[ing] the facts ofthe case by conducting an independent investigation.”).



[T]he attorney’s role differs from that of a guardian ad litem . . . . Acourt-appointed counsel’s services are to the child. Counsel acts as anindependent legal advocate . . . and takes an active part in the hear-ing, ranging from subpoenaing and cross-examining witnesses to ap-pealing the decision, if warranted. If the purpose of the appointment isfor legal advocacy, then counsel would be appointed. A court-ap-pointed guardian ad litem’s services are to the court . . . . The [guard-ian ad litem] acts as an independent fact finder, investigator andevaluator as to what furthers the best interests of the child. The[guardian ad litem] submits a written report to the court and is availa-ble to testify. If the purpose of the appointment is for independentinvestigation and fact finding, then a [guardian ad litem] would beappointed.8

A good summary of the role of the guardian ad litem as investigator iscontained in Wisconsin Bar, Wisconsin Guidelines for Guardians ad Litem inFamily Court, § III (2016), https://www.wisbar.org/SiteCollectionDocuments/Publications/1-GAL-Practice-Guidelines-2016-Update.pdf.

8 In re M.R., 638 A.2d 1274, 1283 (N.J. 1994). Accord Hughes v. Long,242 F.3d 121, 127 (3d Cir. 2001) (“A guardian ad litem is a person appointed bythe court in custody proceedings to serve as an investigator and gather informa-tion); Thunelius v. Posacki, 220 A.3d 194, 203-04 (Conn. App. Ct. 2020); Padillav. Melendez, 491 S.E.2d 905, 908 (Ga. Ct. App. 1997) (the role of the guardianad litem is to protect the interests of the child and to investigate and presentevidence to the court on the child’s behalf); Lee v. Bramlett, No. 2017-CA-01202-COA, 2019 WL 925488, *8 (Miss. Ct. App. Feb. 26, 2019) (“While there isnot a single exhaustive list of duties generally expected of a guardian ad litem,one would certainly expect the guardian ad litem to interview the parties, inves-tigate the potential custodial living arrangements, and ensure that the court hasthe information necessary to make a decision that is in the best interest of theminor child.”); In re Marriage of Duvall, 67 S.W.3d 736, 739 (Mo. Ct. App.2002) (it is imperative that the guardian ad litem investigate and have input onthe perspective of the child’s best interest and present this to the trial judge);Baumgart v. Baumgart, 944 S.W.2d 572, 578-79 (Mo. Ct. App. 1997) (the guard-ian ad litem has a duty to conduct all necessary interviews with persons havingknowledge or contact with the child); In re Marriage of Campbell, 868 S.W.2d148 (Mo. Ct. App. 1993) (the guardian ad litem was acting within the scope ofhis responsibilities when he conducted discovery, interviewed the parties’ olderchild, actively participated in the trial and offered recommendations to thecourt); State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 385 (Mo. Ct. App. 1993)(stating that it is imperative that the guardian ad litem investigate and presentits perspective to the trial judge, thereby enabling the court to render a decisionin accordance with the statutory standard of the best interests of the child);Shemek v. Brown, No. A-14-760, 2015 WL 3863168, *4 (Neb. Ct. App. June 23,2015) (the guardian ad litem’s duties are to investigate the facts and learn wherethe welfare of the child lies and to report to the appointing court); Smith v.Smith, 623 N.W.2d 705, 710 (Neb. App. 2001) (“The guardian ad litem’s duties



This key difference, the guardian ad litem as investigatorand not attorney, means that unlike an attorney for a party, aguardian ad litem presents evidence to the court in the form of areport and/or testimony.9

The most common role of a guardian ad litem is investigator.In order to determine the best interests of a child, the guardianad litem must investigate the facts, circumstances, and individuals

are to investigate the facts and learn where the welfare of his or her ward liesand to report these facts to the appointing court.”); Betz v. Betz, 575 N.W.2d406, 409 (Neb. 1998) (“The guardian ad litem’s duties are to investigate the factsand learn where the welfare of his or her ward lies and to report these facts tothe appointing court.”); Longo v. Longo, 2014-Ohio-4880, 2014 WL 551084, *5(Ohio Ct. App. Nov. 3, 2014) (“A GAL’s primary duty is to investigate a child’ssituation and request a court to act in accordance with the child’s best inter-ests.”); Kahre v. Kahre, 916 P.2d 1355, 1362 (Okla. 1995) (the duty of a guard-ian ad litem in a custody dispute “has almost universally been seen as owing . . .to the court that appointed him, [and] not strictly . . . to the child”); Kenney v.Hickey, 486 A.2d 1079, 1081–82 (R.I. 1985) (approving of the use of a guardianad litem in a custody proceeding to gather information, prepare a report, andmake a recommendation to the court); Cremeens v. Cremeens, No. M2014-00152-COA-R3-CV, 2015 WL 1946165, *4 (Tenn. Ct. App. Apr. 29, 2015) (not-ing that the guardian ad litem shall conduct an investigation to the extent thatthe guardian ad litem considers necessary to determine the best interests of thechild); In re Marriage of Swanson, 944 P.2d 6, 11 (Wash. Ct. App. 1997) (therole of the guardian ad litem is to investigate the relevant facts concerning thechild’s situation). See generally LINDA D. ELROD, CHILD CUSTODY PRACTICE

AND PROCEDURE § 12:7 at 1253-57 (2020 rev. ed) (describing the guardian adlitem’s “investigative function”); Robert J. Levy, Custody Investigations in Di-vorce-Custody Litigation, 12 J. L. & FAM. STUD. 431 (2010).

9 Seaton v. Tohill, 53 P. 170, 172 (Colo. Ct. App. 1898) (conceiving of aguardian ad litem as an “agent of the court, through whom [the court] acts toprotect the interests of the minor”); James v. James, 64 So. 2d 534, 536 (Fla.1953) (“When a guardian is appointed . . . he is regarded as the agent of thecourt”); In re Mark W., 888 N.E.2d 15, 20 (Ill. 2008) (“The traditional role ofthe guardian ad litem is . . . to make a recommendation to the court as to whatis in the ward’s best interests.”); Kennedy v. State, 730 A.2d 1252, 1255(Me.1999) (“in custody cases, the guardian ad litem has traditionally beenviewed as functioning as an agent or arm of the court, to which it owes itsprincipal duty of allegiance” ); In re Billy W., 875 A.2d 734, 752, n.20 (Md.2005) (discussing the “traditional role” for guardians ad litem in custody casesas the duty to determine the child’s best interests, make a recommendation tothe court on that basis, and testify at the custody hearing); Croghan v. Living-ston, 6 App. Pr. 350 (N.Y. 1858) (at common law “the guardian ad litem wasbut the agent of the court to attend to [the minor child’s] interests duringlitigation”).



involved in the case. This begins with interactions with the childand interviews with individuals involved in the child’s life. Theguardian ad litem will also review relevant school, medical, andfamily records. In combination with their investigative role,guardians ad litem function as court reporters. After conductingtheir investigation, guardians ad litem are required to draft re-ports of their findings and recommendations for the court. De-pending on the prior court procedures, the report is either sealedor shared with the other parties in the proceeding.10

Because the guardian ad litem is presenting evidence basedon investigation, issues concerning admissibility arise. Two prom-inent authors, Dana E. Prescott and Diane A. Tennies, recentlynoted in this Journal that over the last forty years, courts haveostensibly tossed all evidentiary rules to the wind:

[F]ederal law, state legislative enactments and state case law andrulemaking have, over the past four decades, created a unique excep-tion to admissibility of guardian ad litem (GAL) facts and opinions inreports and testimony. This extraordinary exception to the rules of evi-dence and a century of case law essentially waives expert qualifica-tions, methodology, and reliability thresholds, applicable in all otherfederal and state courts across the country. As such, by legislative fiatbut within constitutional proscriptions, a GAL may provide data tothe court in the form of hearsay or other third-party information andthen select and connect the data to an opinion on the ultimate issue ina child custody or child maltreatment case.11

10 Sexton, supra note 4, at 835-36. See also, e.g., S.G. v. D.C., 13 So. 3d269, 282 (Miss. 2009) (a guardian ad litem is “obligated to investigate the allega-tions before the court, process the information found, report all material infor-mation to the court, and (if requested) make a recommendation. However, theguardian ad litem should make recommendations only after providing the courtwith all material information which weighs on the issue to be decided by thecourt, including information which does not support the recommendation. Thecourt must be provided all material information the guardian ad litem reviewedin order to make the recommendation. Recommendations of a guardian ad li-tem must never substitute for the duty of a chancellor.”).

11 Dana E. Prescott & Diane A. Tennies, The Lawyer as Guardian adLitem: Should “Status” Make Expert Opinions “All-in” and Trump “Gatekeep-ing” Functions by Family Courts?, 30 J. AM. ACAD. MATRIM. LAW. 379 (2018).Prescott and Tennies ultimately criticize courts and legislatures that allowguardian ad litem reports to repeat hearsay and opine as to the ultimate issuesin the case. See also Resa M. Gilats, Out-of-Court Statements in Guardian adLitem Written Reports and Oral Testimony, 33 WM. MITCHELL L. REV. 911(2007); Emily Gleiss, The Due Process Rights of Parents to Cross-Examine



But beyond the issues of hearsay and testifying as to ulti-mate issues, which Prescott and Tennies so ably discuss,12 are theissues of confidentiality and privilege.

This article focuses on issues of confidentiality and privilegethat may arise for a guardian ad litem and the parties to the cus-tody dispute. Part I will address the confidentiality of conversa-tions with a guardian ad litem. Part II will discuss the degree towhich, if any, the guardian ad litem is a holder of the child’s priv-ilege. Part III will discuss a related but distinct issue – whetherthe guardian ad litem can pierce privileges held by the parties.

The authors will conclude that blanket waivers of privilegeby the parties should be eliminated. Waivers of privilege by theparties should be unique and tailored to the particular case. Theauthors will also conclude that if the mental health of the child ora party is in issue, the first resort of the court should be to order amental health exam, with the clear knowledge by the child or aparty that the results are not privileged; piercing the privilege ofnon-court ordered exams must be a last resort.

I. Confidentiality of Conversations with theGuardian Ad Litem

Because the guardian ad litem is not the “attorney” per sefor the child, attorney-client privilege does not extend to conver-sations between the guardian ad litem and the child, or indeedbetween the guardian ad litem and any other person.13 Thismakes inherent sense because there can be no reasonable expec-

Guardians ad Litem in Custody Disputes: The Reality and the Ideal, 94 MINN. L.REV. 2103 (2010); Steven N. Peskind, Evidentiary Opportunities: Applicabilityof the Hearsay Rules in Child Custody Proceedings, 25 J. AM. ACAD. MATRIM.LAW. 375 (2013); Daniel W. Shuman, What Should We Permit Mental HealthProfessionals to Say About “The Best Interests of the Child”?: An Essay onCommon Sense, Daubert, and the Rules of Evidence, 31 FAM. L.Q. 551, 565-66(1997).

Of course, as a practical matter, the parties can enter into an agreed orderthat the guardian ad litem can testify as to hearsay statements contained in thereport and recommendations provided the guardian ad litem’s report containsthe name, address, telephone number, and email address of any and all wit-nesses contacted.

12 Prescott & Tennies, supra note 11, at 379.13 “Whereas a child’s relationship with the attorney is privileged, the rela-

tionship with the GAL is not.” Boumil et al., supra note 7, at 52.



tation that statements made to a guardian ad litem would betreated as confidential, given the guardian ad litem’s role as re-porter to the court.14

As stated in Farris v. McKaig,15

Perhaps the starkest difference between the two is that, unlike [a law-yer for the child], appointment of a GAL “does not create an attor-ney-client relationship,” and “[c]ommunications between that personand the guardian ad litem are not subject to the attorney-clientprivilege.”16

14 E.g., Robertson v. Central Jersey Bank & Trust Co., 834 F. Supp. 705,710 (D. N.J. 1993) (communications between a minor’s parents and a guardianad litem were not made with the expectation of confidentiality). CompareGreen v. Green, 593 N.W.2d 398, 401 n.2 (N.D. 1999) (“Lawyers who act asboth a guardian ad litem and as an investigator should be aware of the conflictif examined by the parties as to statements made to the guardian under an ex-pectation of confidentiality, and advise their clients accordingly.”). See generallyTara Lea Muhlhauser & Douglas D. Knowlton, The Best Interest Team: Explor-ing the Concept of a Guardian ad Litem Team, 71 N.D. L. REV. 1021 (1995)(advocating the “best interests team,” comprising a guardian ad litem, physi-cian, mental health professional, each with clearly defined roles and ethicalobligations).

15 920 N.W.2d 377 (Mich. Ct. App. 2018).16 Id. at 382. Accord In re Gabriel C., 229 A.3d 1073, 1087 (Conn. App.

Ct. 2020); Linnell v. Linnell, No. FA064010515, 2010 WL 1224368 (Conn. Super.Ct. Feb. 16, 2010) (holding that notes and materials prepared by a guardian adlitem are not protected from discovery under either the attorney-client privilegeor work product doctrine); In re Guardianship of Mabry, 666 N.E.2d 16, 24 (Ill.App. Ct. 1996) (citing child representation statute and holding that no attorney-client privilege exists between guardian ad litem and ward because the guardianad litem’s duty is to serve the ward’s best interests); Deasy-Leas v. Leas, 693N.E.2d 90 (Ind. App. 1998) (Indiana Code § 31–1–11.5–28 does not confer anattorney/client privilege upon the guardian ad litem/child relationship in thatthe guardian ad litem is appointed to represent the child’s best interests as op-posed to the child himself or herself); Ross v. Gadwah, 554 A.2d 1284, 1285(N.H. 1988) (noting that the guardian ad litem represents the child’s interestsand holding, “Communications between a guardian ad litem and a minor childare not privileged”); Culbertson v. Culbertson, 2007-Ohio-4782, 2007 WL2702450 (Ohio Ct. App. Sept. 17, 2007) (“the requested discovery and theguardian ad litem’s Motion for Protective Order do not implicate any privilegedmatter such as attorney-client privilege or attorney work product. The Magis-trate appointed the guardian ad litem in this case to serve as the guardian adlitem for the parties’ daughter, not to serve as the attorney for the daughter”);Radford v. Radford, 371 P.3d 1158 (Okla. Civ. App. 2016) (there was no attor-ney-client privilege between the husband and the GAL to protect); Townsend v.Townsend, 474 S.E.2d 424, 429 (S.C. 1996) (a guardian ad litem has no absolute



The scholars surveying this area of law have similarly stated thatthe attorney must be available to testify at the request of the courtabout the attorney’s conclusions regarding what the attorney believesto be the best interests of the child.17

duty of confidentiality to his ward); Runyon v. Zacharias, 556 S.W.3d 732(Tenn. Ct. App. 2018); Clark v. Alexander, 953 P.2d 145, 154 (Wyo. 1998) (“Aslegal counsel to the child, the attorney/guardian ad litem is obligated to explainto the child . . . that the attorney/guardian ad litem is charged with protectingthe child’s best interest and that information may be provided to the courtwhich would otherwise be protected by the attorney-client relationship.”). Seealso R.I. GEN. LAWS § 15–5–16.2(c)(1)(iv)–(v) (2020) (communications be-tween the guardian ad litem and the child are not privileged, but still identifyingthe child’s best interests as the focus of the court’s determination and the guard-ian ad litem’s duties); Alaska Bar Ass‘n Ethics Op. #85-4 (1985) (stating thatthe lawyer-client privilege does not apply when the lawyer is appointed to bethe child’s guardian ad litem); Ark. Sup. Ct. Admin. Order 15, Attorney Quali-fications and Standards § 5(g) (“An attorney ad litem shall not be prevented byany privilege, including the lawyer-client privilege, from sharing with the courtall information relevant to the best interest of the child.”); Maine Guardian adLitem Rules r. 5(g) (2016) (“The guardian shall exercise reasonable discretionabout whether to disclose communications made by the child to the court, or toprofessionals providing services to the child or the family based on the guardianad litem’s evaluation of the best interest of the child. Any decision by theguardian not to disclose such information, however, shall be subject to reviewby the court following an in camera review.”); Mass. Prob. & Family Ct. Stand-ing Order 1–05, Standards for Guardians Ad Litem/Investigators §§ 1.3(c), 1.5& cmt. (making clear that the child’s best interests control and that the guard-ian ad litem should adhere to professional standards, but also that “[t]here is noattorney-client confidentiality”). But see Bentley v. Bentley, 448 N.Y.S.2d 559(N.Y. App. Div. 1982) (holding that communications between minor childrenand a guardian ad litem in a divorce and custody case are entitled to the lawyer-client privilege).

17 Alberto Bernabe, Guarding the Guardians: Should Guardians ad LitemBe Immune from Liability for Negligence?, 51 LOY. U. CHI. L.J. 1001, 1023-24(2020). See also Alberto Bernabe, The Right to Counsel Denied: Confusing theRoles of Lawyers and Guardians, 43 LOY. U. CHI. L.J. 833 (2012); Bruce Boyer,Report of the Working Group on Confidentiality, 64 FORDHAM L. REV. 1367,1372 (1996) (explaining that information disclosed to a “best interest guardianad litem” can and should be disclosed when disclosure is in the best interest ofthe child); Note, Lawyering for the Child: Principles of Representation in Cus-tody and Visitation Disputes Arising from Divorce, 87 YALE L. J. 1126 (1978);Sexton, supra note 4, at 837 (stating that information shared by the child withthe guardian ad litem is not privileged); Roy T. Stuckey, Guardians ad Litem asSurrogate Parents: Implications for Role Definition and Confidentiality, 64FORDHAM L. REV. 1785, 1805 (1996) (“In fact, there is a general reluctance by



Because there is no confidentiality as to what is said to aguardian ad litem, many states require that “non-confidentialitywarnings” be given to any person or entity providing the guard-ian with information.18 This requirement of a warning applies tothe child as well.19

Nonetheless, at least a few courts have carved out an excep-tion, holding that a guardian ad litem may offer confidentiality toa child and keep that promise if confidentiality is necessary to getthe child to provide the guardian ad litem with information.20

One author has argued that young children simply do not under-stand the role of a guardian ad litem, and assume that the“secrets” they tell the guardian ad litem will remain secret. Insuch a case, confidentiality should be the default.21

Another issue that arises with regards to the guardian ad li-tem holding the child’s confidences is that a guardian ad litemmay in fact be a lawyer, or may hold other professional licensuresuch as psychologist, psychiatrist, therapist, social worker, orcounselor.22 Some professionals confuse the rules of confidential-ity under a profession’s ethical guidelines and codes, on the one

judges and legislators to recognize a privilege in any nonprofessional relation-ships other than between husbands and wives.”).

18 Boumil, et al., supra note 7, at 55.19 Id. E.g., DEL. CODE ANN. tit. 29, § 9007A(c) (2020) (“The attorney

guardian ad litem’s duty is to the child. The scope of the representation of thechild is the child’s best interests. The attorney guardian ad litem shall have theduty of confidentiality to the child unless disclosure is necessary to protect thechild’s best interests.”). See also Stuckey, supra note 17, at 1792.

20 E.g., In re Kalil, 931 A.2d 1255 (N.H. 2011).21 Emily Buss, “You’re My What?” The Problem of Children’s Mispercep-

tions of Their Lawyers’ Roles, 64 FORDHAM L. REV. 1699,1716 (1996).22 See, e.g., MAINE GUARDIAN AD LITEM RULE (2)(b)(2)(A):Credentials. The applicant must (i) Possess a current valid license topractice law in the State of Maine; (ii) Possess a current valid licenseto practice as a Licensed Clinical Social Worker (LCSW), LicensedProfessional Counselor (LPC), Licensed Clinical Professional Coun-selor (LCPC), Licensed Master Social Worker (LMSW), LicensedMarriage Family Therapist (LMFT), Licensed Pastoral Counselor(LPaC), psychologist, or psychiatrist in the State of Maine; or (iii) Pos-sess a Certification of Qualification by the Director of the CASA pro-gram, provided that a CASA Certification qualified individual may beappointed a guardian ad litem only pursuant to 22 M.R.S. § 4005; or(iv) Have been on the GAL roster on the effective date of the imple-mentation of these Rules (September 2015), have completed the core



hand, with the role of the guardian ad litem and the guardian’sduty to the court and child, on the other hand. The two overlapbut are not co-extensive.23 Thus, regardless of professional licen-sure, a guardian ad litem must follow the rules which guide thelaw in that jurisdiction vis a vis guardians ad litem, and operatecarefully within that role. If a psychologist, for example, acting asa guardian ad litem decides to conduct testing, clinical evalua-tions, or therapeutic interventions, that role-confusion could cre-ate ethical and legal traps. The confidentiality as a guardian adlitem must be governed by that role above any others, because itis in this role that the guardian ad litem is reporting to the court.

II. The Guardian Ad Litem as Holder of theChild’s Privilege

A guardian ad litem engaged in the investigative role is theholder of the child’s privilege. Thus, the guardian ad litem deter-mines (sometimes as a recommendation to a judge, sometimeswithin his or her own powers) whether the child’s privilegeshould be asserted or waived with regard to doctors, therapists,

training required by these Rules, and if the applicant holds profes-sional licenses, be in good standing.

In Massachusetts, see Massachusetts Law About Child Custody and ParentingTime, MASS.GOV, https://www.mass.gov/info-details/massachusetts-law-about-child-custody-and-parenting-time (last visited Nov. 3, 2020), and Standards forCategory F Guardian ad Litem Investigators, MASS.GOV, https://www.mass.gov/doc/standards-for-category-f-guardian-ad-litem-investigators/download (lastvisited Nov. 3, 2020).

23 See James N. Bow & Francella A. Quinnell, Psychologists’ CurrentPractices and Procedures in Child Custody Evaluation: Five Years After Ameri-can Psychological Association Guidelines, 32 PROF. PSYCHOL.: RES. & PRAC.261 (2001); Bruce A. Green, Lawyers as Nonlawyers in Child-Custody and Visi-tation Cases: Questions from the “Legal Ethics” Perspective, 73 IND. L.J. 665(1998); Jean Koh Peters, Concrete Strategies for Managing Ethically-Based Con-flicts Between Children’s Lawyers and Consulting Social Workers Who Serve theSame Client, 1 KY. CHILD. RTS. J. 15 (Mar. 1991).

As a matter of practice, the attorney should consider including in the orderappointing the guardian ad litem a provision detailing the applicability of waiv-ers of confidentially if the guardian ad litem to be appointed is a professionalwhose professional code of ethics imposes duties and/or privileges that wouldbe inapplicable when acting as a guardian ad litem.



and social workers who have treated the child.24 The guardian adlitem, not the parents, has this power, because parents wouldnecessarily have a conflict between their own interests and thechild’s in asserting or waiving privilege.25

24 Gil v. Gil, 892 A.2d 318, 331 (Conn. App. Ct. 2006) (holding that thechild’s guardian ad litem was in the best position to evaluate and to exercise thechild’s confidentiality rights, and thus the guardian ad litem invoked the child’spsychologist-patient privilege; therefore, the testimony of the child’s currentpsychologist was not admissible in a contempt proceeding brought against theex-wife for denying the ex-husband his court-ordered visitation with the child);Garcia v. Guiles, 254 So.3d 637, 640 (Fla. Dist. Ct. App. 2018) (deciding thatneither parent can waive a child’s patient/psychotherapist privilege, in an actionto modify the timesharing of the child, because the subject matter of the litiga-tion is the child’s welfare, and holding that the guardian ad litem holds theprivilege); PO v. JS, 377 P.3d 50, 58 (Haw. Ct. App. 2018), aff’d in part, vacatedin part on other grounds, 393 P.3d 986 (Haw. 2017); Evans v. Hess, NOS.2013–CA–002072–ME, 2014–CA–001512–ME, 2015–CA–000043–ME, 2016WL 1389799, *8 (Ky. Ct. App. 2018) (when a guardian ad litem is appointed in achild custody proceeding, it is the guardian ad litem, not the parent, who mayinvoke or waive the child’s psychotherapist-patient privilege); Miller v. Bosley,688 A.2d 45, 54 (Md. Ct. Spec. App. 1997) (deciding that a court-appointedattorney representing the child in an action in which custody, visitation, or sup-port is contested may exercise certain waivers of child’s privileges, act as guard-ian ad litem, and serve as the court’s investigator); Marina C. v. Dario D., 114N.Y.S.3d 495, 497 (N.Y. Sup. Ct. 2019) (holding that the trial court erred byfailing to appoint a guardian ad litem who could have objected to testimony bya child’s therapist as to confidential discussions in therapy and the father’s testi-mony regarding child’s statements); see also In re Zappa, 631 P.2d 1245, 1251(Kan. Ct. App. 1981) (holding that a parent cannot assert or waive the child’sprivilege in a termination of parental rights case); State v. S.H., 465 N.W.2d 238,240 (Wis. Ct. App. 1990) (in a case in which the father was charged with assaultof the children, the psychologist-patient privilege asserted by the guardian adlitem on behalf of the children supersedes the father’s authorization for releaseof the children’s treatment records); Alaska CINA r. 9(b)(3)(B) (2015) (notingthat the child or the child’s GAL holds the privilege during dependency andneglect proceedings); CAL. WELF. & INST. CODE § 317(f) (West Supp. I 2015);MASS. GEN. LAWS c. 233, § 20B (2014). See generally Boumil et al., supra note 7(evaluating under what circumstances GALs have the power and at times theresponsibility to waive children’s privileges); Starla Doyal, The Guardian AdLitem as the Child’s Privilege Holder, 87 U. COLO. L. REV. 205 (2016); DonaldTye, The Preferences and Voices of Children in Massachusetts and Beyond, 50FAM. L.Q. 471 (2016).

25 L.A.N. v. L.M.B., 292 P.3d 942, 948 (Colo. 2013) (en banc) (holdingthat the child patient’s parent cannot hold the child’s psychotherapist-patientprivilege when the parent’s interests as a party in a proceeding involving thechild might give the parent an incentive to strategically assert or waive the



III. The Ability of a Guardian ad Litem toPierce the Privilege of the Parties

A much more difficult question than those addressed aboveis the ability of the guardian ad litem to pierce the privilege ofthe parties to the child custody case and demand what would oth-erwise be privileged medical and mental health records.26 The

child’s privilege in a way that could contravene the child’s interest in maintain-ing the confidentiality of the patient-therapist relationship); In re Berg, 886A.2d 980, 988 (N.H. 2005) (ruling that in divorce proceedings, the trial court orGAL instead of the father must determine if the waiver of privilege as to apsychologist’s records is in the child’s best interest); Attorney ad Litem v. Par-ents of D.K., 780 So.2d 301, 307 (Fla. Dist. Ct. App. 2001) (“Where the parentsare involved in litigation themselves over the best interests of the child, theparents may not either assert or waive the privilege on their child’s behalf.”);State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409 (Mo. 1996) (deter-mining that where the privilege is claimed on behalf of the parent rather thanthe child, and the welfare and interest of the child would not be protected bythe parent, the parent should not be permitted to assert or waive the privilege);Bond v. Bond, 887 S.W.2d 558, 561 (Ky. Ct. App. 1994) (“custodial parent maynot invoke the psychotherapist-patient privilege for a child in custody litiga-tion”); In re Adoption of Diane, 508 N.E.2d 837, 840 (Mass. 1987) (“In a casesuch as this, where the parent and child may well have conflicting interests, andwhere the nature of the proceeding itself implies uncertainty concerning theparent’s ability to further the child’s best interests, it would be anomalous toallow the parent to exercise the privilege on the child’s behalf.”); Compare Na-gle v. Hooks, 460 A.2d 49, 51 (Md. 1983) (it is “patent that [a parent involved ina custody battle] has a conflict of interest in acting on behalf of the child inasserting or waiving the privilege of nondisclosure,” and, therefore, “the ap-pointment of an attorney to act as the guardian of the child in the instant matteris required”), with Berg, 886 A.2d at 988 (holding that even if parents and aguardian ad litem agree that a child’s therapist-client privilege should bewaived, the child has a separate interest that the court must consider, and if theminor is mature enough to assert the privilege personally, that assertion may begiven substantial weight).

26 The court may generally obtain the records of a court ordered physicalor psychological exam; there is no expectation of privilege for these exams, andclaims of privilege are expressly waived for such exams. E.g., Johnston v. Weil,920 N.E.2d 494, 500 (Ill. App. Ct. 2009) (ruling that the ex-wife’s participationin the evaluation performed by the court-appointed evaluator, who was a psy-chiatrist, did not constitute a therapeutic relationship, and thus, the ex-wifecould not invoke the protections of the Mental Health and Developmental Dis-abilities Confidentiality Act with respect to communications made by the ex-wife to the psychiatrist); Segarra v. Segarra, 932 So.2d 1159, 1161 (Fla. Dist. Ct.App. 2006) (holding that no privilege obtained when there was no expectation



first issue that arises is, may a guardian ad litem, without an ex-press and clear waiver from a parent,27 obtain the confidential/

of privacy, such as court-ordered counseling). Compare In re Alethea W., 747A.2d 736, 739 (Md. Ct. Spec. App. 2000) (explaining that since court orderedpsychological examinations are performed for the benefit of the court and notthe individual and with the understanding that no privilege of confidentialityapplies, the purpose of the privilege, which is to aid in providing effective treat-ment by encouraging free and open communication between the therapist andthe patient, is not served and, accordingly, does not apply), with Gottschalk v.Gottschalk, 715 S.E.2d 715 (Ga. Ct. App. 2011) (agreeing that the trial courterred in stating that the appellant had no privilege with regard to his therapybecause it was court-ordered. “As the appellant’s relationship with the court-ordered therapist involves or contemplates treatment, his communications withthe therapist are privileged.”) (emphasis added).

Just because these records are discoverable does not mean, however, that acourt has the complete authority to order such an exam. Rather, there must besome articulable basis making such an examination necessary, i.e., that goodcause exists for the examination. E.g., Lopes v. Ferrari, 204 A.3d 1254 (Conn.App. Ct. 2019); Oldham v. Greene, 263 So. 3d 807 (Fla. Dist. Ct. App. 2018);Kelly v. Kelly, 451 P.3d 429 (Idaho 2019); Jones v. Jones, 274 So.3d 811 (La. Ct.App. 2019); Le-Blanc v. Andrews, 931 So. 2d 683 (Miss. Ct. App. 2006); Siegellv. Iqbal, 122 N.Y.S.3d 328 (N.Y. App. Div. 2020); In re Marriage of King, 371P.3d 1139 (Okla. Civ. App. 2015); Jordan v. Jackson, 876 A.2d 443 (Pa. Super.Ct. 2005); Gentile v. Gentile, No. M2008–02685–COA–R3–CV, 2010 WL2812627 (Tenn. Ct. App. July 19, 2010); Davis v. Davis, No 13–01–707–CV, 2003WL 21355239 (Tex. Ct. App. June 12, 2003); Smith v. Rawson, No. 2012-243,2012 WL 6633514 (Vt. Dec. 13, 2012). See also Schouw v. Schouw, 593 So.2d1200, 1201 (Fla. Dist. Ct. App. 1992) (“A court ordered psychiatric or psycho-logical examination is the suggested method for balancing the court’s need todetermine the parents’ mental health as it relates to the best interest of thechild, and the need to maintain the confidentiality between a treating psycho-therapist and the patient.”).

27 Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. Dist. Ct. App. 2018) (“Insituations in custody cases where a parent’s mental health is called into ques-tion, allowing parties to directly access other’s medical records, over their ob-jection, is departure from essential requirements of law; but when privilege iswaived, the trial court is faced with an entirely different situation.”) (emphasisadded); Zarzaur v. Zarzaur, 213 So. 3d 1115 (Fla. Dist. Ct. App. 2017) (holdingthat a wife’s participation in independent psychological evaluation did notwaive privilege, but her agreement to provide past mental health records to theindependent psychologist amounted to voluntary waiver of her psychotherapist-patient privilege with respect to mental health records that were actually pro-vided to an independent psychologist) (emphasis added); Weekley v. Weekley,972 N.Y.S.2d 376, 378 (N.Y. App. Div. 2013) (statements made by the mother’sfiance to his counselor were not privileged and thus were not prohibited frombeing the subject of testimony during the hearing on the father’s petition to



privileged medical and psychological records of a parent merelybecause the parties are engaged in custody litigation.28

modify a prior order awarding primary physical custody of the parties’ child tothe mother, where the mother’s fiance had expressly authorized his counselor todisclose privileged communications)(emphasis added); Grosberg v. Grosberg,68 N.W.2d 725, 727 (Wis. 1955) (noting that the record on appeal in a divorcecase did not establish that the trial court had required the wife’s waiver of privi-lege as to the psychiatrist’s testimony, but established that she had freely andvoluntarily waived the privilege).

As noted by a child and family lawyer, however, parents waive their privi-lege all too often unknowingly:

For years, guardians ad litem and child representatives have given ge-neric consent forms to parents, asking them to waive their personaltherapist/patient privilege during litigation regarding their children.The parents (often blindly) sign consents on behalf of their minor chil-dren, also because their attorney or the GAL asks them to. Just oneparent’s consent is enough to waive a minor child’s mental health priv-ilege. If a child is over 12 years old, a parent usually tells them thatthey must sign the consent, and the child routinely complies. Manycourt-appointed experts begin their investigation, asking for consentsto be signed by all.

Kathryn L. Ciesla, It’s Not Broken, So Don’t Try to “Fix” It: Keep CounselingConfidential, 34 CBA REC. 26 (July/Aug. 2020). See also JEFF ATKINSON, 2MODERN CHILD CUSTODY PRACTICE § 14-5 (2d ed. Supp. 2019) (form releaseto guardian ad litem); CHILDREN’S LAW CENTER, 2020 GUARDIAN AD LITEM

TRAINING MANUAL 3 (blanket release), https://www.childrenslawcenter.org/sites/default/files/attachments/resources/Tab%2010.pdf.

Implied waiver is discussed infra in text at notes 31-32.28 See Amy J. Amundsen, Balancing the Court’s Parens Patriae Obliga-

tions and the Psychological-Parent Privilege in Custody Disputes, 28 J. AM.ACAD. MATRIM. LAW. 1 (2015) (surveying the states on the issue, and arguingthat the studies that support the view that privilege should not be waived basedon the argument that privilege encourages treatment are flawed); Boumil, et al.,supra note 7; Marcia M. Boumil, Debbie F. Freitas & Cristina F. Freitas, Waiverof the Psychotherapist-Patient Privilege: Implications for Child Custody Litiga-tion, 22 HEALTH MATRIX 1 (2012); Gale Humphrey Carpenter, Overriding thePsychologist-Client Privilege in Child Custody Disputes: Are Anyone’s Best In-terests Being Served?, 68 UMKC L. REV. 169 (1999); Ike Vanden Eykel & Em-ily Miskel, The Mental Health Privilege in Divorce and Custody Cases, 25 J. AM.ACAD. MATRIM. LAW. 453 (2013); James K. Filan, Jr., Psychotherapist–PatientPrivileges in Child Custody Disputes: Connecticut and Beyond, 13 BRIDGEPORT

L. REV. 281 (Winter 1993) (focusing on Connecticut law); Deborah Paruch, ThePsychotherapist-Patient Privilege in the Family Court: An Exemplar of Dishar-mony Between Social Policy Goals, Professional Ethics, and the Current State ofthe Law, 29 N. ILL. U. L. REV. 499 (2008); Karen L. Ross, Revealing Confiden-tial Secrets: Will It Save Our Children?, 28 SETON HALL L. REV. 963, 981 (1998)



As stated by prominent scholars in this area,The classic family courtroom drama over psychotherapist-patient priv-ilege often revolves around whether litigants put their mental health atissue, or whether privilege should yield to the child’s welfare. Con-tested child custody proceedings often add another wrinkle to theanalysis: whether the patient waives her privilege by authorizing thepsychotherapist to be interviewed by a guardian ad litem (GAL).29

Right now, more states than not have held that merely re-questing custody, without more, does not put one’s mental healthin issue, with the plurality of states taking an intermediate posi-tion.30 Thus, in most states, the mere allegation of mental insta-

(arguing that an absolute psychotherapist-patient privilege is within the consti-tutional right to privacy, and that patients’ interests in confidentiality of privateaffairs are included in the liberty interests protected by the Due Process Clauseof the Fifth and Fourteenth Amendments); Ralph Slovenko, Child Custody andthe Psychotherapist-Patient Privilege, 19 J. PSYCHIATRY & L. 163, 171 (1991);Carlton D. Stansbury, Accessibility to a Parent’s Psychotherapy Records in Cus-tody Disputes: How Can the Competing Interests Be Balanced?, 28 BEHAV. SCI.& L. 522 (July/Aug. 2010); Courtney Waits, The Use of Mental Health Recordsin Child Custody Proceedings, 17 J. AM. ACAD. MATRIM. LAW. 159 (2001).

It is worth noting that no physician or mental health professional privilegeapplies to court ordered examinations. ELROD, supra note 8, at § 9:18 at 1090.See supra sources in note 27.

29 Boumil et al., supra note 29, at 20.30 For cases holding that a parent does not put his or her mental health in

issue by a prayer for custody, see Lester v. Lester, 690 So. 2d 378, 380 (Ala. Civ.App. 1996); Hodson v. Hodson, No. S-10572, 2003 WL 22815939 (Alaska Nov.26, 2003); Darab Cody N. v. Olivera, 242 Cal. Rptr. 3d 891, 897 (Cal. Ct. App.2019); In re Marriage Meteer, No. B154682, 2003 WL 1084650 (Cal. App. Mar.12, 2003) (rejecting the “[h]usband’s theory that by filing the marital dissolutionpetition and requesting child custody, [w]ife waived the psychotherapist-patientprivilege”); Simek v. Super. Ct., 172 Cal. Rptr. 564, 568 (Cal. Ct. App. 1981);Cabrera v. Cabrera, 580 A.2d 1227, 1233 (Conn. App. Ct. 1990); Reno v. Reno,282 So.3d 163, 170 (Fla. Dist. Ct. App. 2019); Roper v. Roper, 336 So. 2d 654,657 (Fla. Dist. Ct. App. 1976); Weksler v. Weksler, 325 S.E.2d 874, 874-75 (Ga.1985) (holding that the wife’s clinical records were admissible except for thoseportions that were privileged under the psychiatrist-patient privilege); Barker v.Barker, 440 P.2d 137, 139 (Idaho 1968); L.G. v. S.L., 76 N.E.3d 157, 169 n.11(Ind. Ct. App. 2017); Laznovsky v. Laznovsky, 745 A.2d 1054, 1066 (Md. Ct.Spec. App. 2000); Navarre v. Navarre, 479 N.W.2d 357, 358 (Mich. Ct. App.1991) (“potentially valuable evidence regarding the condition of parties to acustody dispute must be sacrificed to the perceived greater good of protectingphysician-patient relationships.”); Belding v. Belding, 736 So. 2d 425, 431 (Miss.Ct. App. 1999); State ex rel Husgen v. Stussie, 617 S.W.2d 414 (Mo. Ct. App.1981) (limited in part by Roth v. Roth, 793 S.W.2d 590, 592 (Mo. Ct. App. 1990),



which held that a party may not invoke physician-patient privilege in any cus-tody proceedings involving known or suspected child abuse or neglect); Kinsellav. Kinsella, 696 A.2d 556, 576-77 (N.J. 1997); Spencer v. Spencer, 301 S.E.2d411, 413 (N.C. Ct. App. 1983); Weaver v. Weaver, No. 2003CA00096, 2004 WL1784595, *8 (Ohio Ct. App. Aug. 9, 2004); Avery v. Nelson, 455 P.2d 75, 78(Okla. 1969) (finding that a party to litigation does not waive the privilegeagainst compulsory disclosure of physician-patient communications simply byplacing in issue in litigation his own physical condition or disability); State v.Evans, 317 P.3d 290, 293 (Or. Ct. App. 2013) (“[Oregon law’s] limited reachdoes not extend to psychotherapist-patient privileged statements that do notmention a child’s abuse, or the cause thereof.”); Gates v. Gates, 967 A.2d 1024,1032 (Pa. Super. Ct. 2009); Osdoba v. Kelley-Osdoba, 913 N.W.2d 496, 505(S.D. 2018); Culbertson v. Culbertson, 393 S.W.3d 678, 686 (Tenn. Ct. App.2012) (Culbertson I); Clausen v. Clausen, 675 P.2d 562, 565 (Utah 1983); In reCustody of H.S.H.-K., 533 N.W.2d 419, 424 (Wis. 1995). See also 740 ILL. COMP.STAT. § 110/10(a)(1) (2020) (“[F]or purposes of this Act, in any action broughtor defended under the [Marriage Act], or in any action in which pain and suf-fering is an element of the claim, mental condition shall not be deemed to beintroduced merely by making such claim and shall be deemed to be introducedonly if the recipient or a witness on his behalf first testifies concerning the re-cord or communication.”).

For cases holding that a parent does put his or her mental state in issue in acustody case, see Pliego v. Hayes, 86 F. Supp. 3d 678, 691 (W.D. Ky. 2017)(determining that the father put his mental health in issue by seeking return ofhis child under the Hague Convention); Slaton v. Slaton, 682 So.2d 1056 (Ala.Civ. App. 1996); In re Marriage of Hall, 241 P.3d 540, 543 (Colo. 2010) (enbanc); Shumaker v. Andrews, 1992 WL 510196, *4 (Del. Fam. Ct. Dec. 3, 1992)(holding that seeking visitation places a party’s mental condition at issue);Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990) [superceded by IND. CODE

§ 16–39–3 (“Release of Mental Health Records in Investigations and Legal Pro-ceedings”)]; Atwood v. Atwood, 550 S.W.2d 465, 467 (Ky. 1976) (recognizingthat a specific legislative exception to the psychiatrist-patient privilege appliesby operation of law to a parent seeking custody); Dawes v. Dawes, 454 So. 2d311, 312–13 (La. Ct. App.1984); Clark v. Clark, 371 N.W.2d 749, 752 (Neb.1985) (relying on NEB. REV. STAT. § 27–504(4)(c)); Smith v. Gayle, 834 S.W.2d105 (Tex. App. 1992).

As noted in Culbertson v. Culbertson, 455 S.W.3d 107, 134 (Tenn. Ct. App.2014), however, there is an “intermediate approach” whereby the court willconduct an in camera review to determine what may be admitted or disclosed:

Some jurisdictions that follow this less protective approach mitigate itsharsh effects by directing trial courts to review the privileged docu-ments in camera to determine whether the relevancy of the documentsis outweighed by the prejudicial effect. See Kinsella, 696 A.2d at581–82 (citing Owen, 563 N.E.2d at 608; Morey v. Peppin, 353 N.W.2d179, 183 (Minn. Ct. App. 1984) [noting that before disclosing therapyrecords, the court is required to review the records in camera in or-



der“to prevent disclosures that are irrelevant to the custody questionor otherwise annoying, embarrassing, oppressive, or unduly burden-some”)], rev’d on other grounds, 375 N.W.2d 19 (Minn. 1985); Clark v.Clark, 220 Neb. 771, 371 N.W.2d 749, 752–53 (1985) [stating that sinceseeking custody “does not result in making relevant the informationcontained in the file cabinets of every psychiatrist who has evertreated the litigant,” a court must review evidence in camera for rele-vance before disclosure]; Kirkley v. Kirkley, 575 So.2d 509, 510–11(La. Ct. App.1991).

In addition to Minnesota, Nebraska, Louisiana, and New Jersey cited inCulbertson, New York takes this intermediate position, holding that while it istrue that parties to a contested custody proceeding place their physical andmental condition at issue, the court has broad discretionary power to limit dis-closure and grant protective orders in a custody case. Stephen KK v. KristinaKK, 69 Misc. 3d 186, 2020 WL 3096292 (N.Y. App. Div. Apr. 15, 2020); Ryan v.Nolan, 21 N.Y.S.3d 469 (N.Y. App. Div. 2015); Wilson v. Hendrickson, 931N.Y.S.2d 170 (N.Y. App. Div. 2011); Matter of Cool v. Malone, 887 N.Y.S.2d334 (N.Y. App. Div. 2009); Garvin v. Garvin, 556 N.Y.S.2d 699 (N.Y. App. Div.1990).

Massachusetts apparently takes this intermediate position as well. In P.W.v. M.S., 857 N.E.2d 38, 44-45 (Mass. App. Ct. 2006), the court stated:

If there is no genuine issue of visitation, then there is no basis for anorder requiring disclosure of the father’s medical or psychiatricrecords. If there is a genuine issue regarding visitation, then the judgemust make a determination whether the medical and psychiatricrecords are relevant to the resolution of the terms of visitation. Thejudge should issue an order, reasonably tailored in time, for the fatherto produce the records. The father may then segregate the records healleges are privileged and make an appropriate claim of privilege sup-ported by affidavit. It is the judge’s responsibility then to determinewhether the records are privileged and, if so, whether their relevanceand importance to the welfare of the children outweigh the privilege.Ifthe judge determines that privileged material should be disclosed tothe GAL, he or she may enter such an order with appropriate limita-tions on its disclosure and orders of confidentiality.

For other states adopting this intermediate approach, see Lowdermilk v.Lowdermilk, 825 P.2d 874, 879 (Alaska 1992); Blazek v. Superior Ct., 869 P.2d509, 516 (Ariz. Ct. App. 1994) (stating that the court conducts an in camerareview to determine what information may lead to admissible evidence); In reMarriage of Kiister, 777 P.2d 272, 275-76 (Kan. Ct. App. 1989) (“In child cus-tody matters and visitation rights, the court’s paramount concern is the welfarethe child. Thus, it was error to have failed to grant the discovery order. In-camera inspection is available to prevent disclosure of irrelevant evidence attrial.”); Sweet v. Sweet, No. 2004–A–0062, 2005 WL 3610481, *2 (Ohio Ct.App. Dec. 29, 2005) (determining that the court must conduct an in camera



bility and the denial of such instability similarly does not putmental health in issue.31

The law in Virginia presents an interesting case study as tothe volatility of this issue. After some lobbying by mental healthprofessionals, in 2003, the Virginia Legislature enacted VirginiaCode § 20-124.3:1, barring mental health professionals from testi-fying in child custody cases without the parent’s explicit consent.After a number of cases came down barring such testimony,32 thefamily law bar lobbied for repeal of the statute,33 and it was re-

review for disclosure and only those records that are “causally or historically”related to a condition relevant for custody is disclosed).

This authors wonder whether the intermediate approach has validity inlight of the following statement by the U.S. Supreme Court in Jaffee v. Red-mond, 518 U.S. 1, 17-18 (1996):

We reject the balancing component of the privilege implemented bythat court and a small number of States. Making the promise of confi-dentiality contingent upon a trial judge’s later evaluation of the rela-tive importance of the patient’s interest in privacy and the evidentiaryneed for disclosure would eviscerate the effectiveness of the privilege.As we explained in Upjohn, if the purpose of the privilege is to beserved, the participants in the confidential conversation “must be ableto predict with some degree of certainty whether particular discussionswill be protected. An uncertain privilege, or one which purports to becertain but results in widely varying applications by the courts, is littlebetter than no privilege at all.

449 U.S. at 393.31 Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. Dist. Ct. App. 1989)

(“[T]he custodial parent’s denial of allegations of mental instability does notoperate as a waiver of the patient-psychotherapist privilege. To hold otherwisewould eviscerate the privilege; a party seeking privileged information wouldobtain it simply by alleging mental infirmity.”).

32 E.g., Rice v. Rice, 638 S.E.2d 702, 706 (Va. Ct. App. 2006) (holding thatbecause the testimony of the child’s therapist was being offered by the child’sgrandparents, it was likely that the substance of the testimony would be adverseto mother’s position in the case, and therefore the mother’s consent to the ther-apist’s testimony must be given under Code § 20–124.3:1); Schwartz v.Schwartz, 616 S.E.2d 59, 65 (Va. Ct. App. 2005) (finding that the trial courtcommitted reversible error by admitting testimony from the therapist over themother’s objection).

33 E.g., Katherine C. Dewart, A Privilege for “Mommy Dearest?” Criticiz-ing Virginia’s Mental Health Records Privilege in Custody Disputes and theCourt’s Application in Schwartz v. Schwartz, 13 GEO. MASON L. REV. 1341(2006).



pealed.34 Thus, Virginia ended up taking the middle road: there isno preclusive bar to mental health records, and mental healthrecords may be obtained for cause in cases where the mentalhealth of a parent is at issue.35

The second issue that arises is, if a parent’s mental state isnot automatically in issue in a custody case, what constitutes awaiver of privilege.

First, if a parent agrees to a court ordered psychological ex-amination, does that constitute a waiver of all psychologicalrecords, even treatment that occurred before the litigation?36 As-suming that the mental states of the parties are not clearly inissue, then merely agreeing to a court ordered mental health

34 2008 Va. Acts, ch. 809.35 Child Custody, Pleading and Practice, and Trial Considerations, VIR-

GINIA PRAC. FAMILY LAW § 15:14 (2020 ed.).36 Compare the situation in Stancuna v. Stancuna, 41 A.3d 1156 (Conn.

App. Ct. 2011). In that case, the court ordered the following:Before the court will consider unsupervised visitation with the minorchildren, the [defendant] must engage the services of an experiencedpsychotherapist and psycho-pharmacologist approved by the [guard-ian ad litem], each of whom has had training in managing and treatingindividuals with delusional disorders, and comply with their recom-mendations for a period of at least [six] consecutive months. The [de-fendant] also must submit to a neuropsychological evaluation to assessany consequences of past head trauma and to rule out complicationsof other diseases if such evaluation is recommended by the psycho-therapist. Attorney for the [plaintiff] and the [guardian ad litem] shallhave access to these professionals, their treatment recommendationsand [the defendant’s] compliance with these recommendations, includ-ing making and keeping appointments and filling and taking prescrip-tions prescribed by the aforesaid professionals. The [defendant] shallexecute appropriate authorizations to [the plaintiff’s] attorney and the[guardian ad litem] to obtain such information.

41 A.3d at 1161. The court held this did not violate the defendant’s privilege,because the court’s order was concerned solely with the procedure that wouldoccur if and after the issue of his unsupervised visitation with either of the chil-dren is presented to the court. Had the trial court treatment allowed for “un-restricted access” to the “treaters” and “unlimited disclosure” by them of hismental health records, as the husband erroneously claimed, the court wouldhave ruled differently. Id.



evaluation does not constitute waiver of privilege for othermental health records.37

Second, merely assenting to the factual investigation by aguardian ad litem does not act as a waiver,38 and testifying aboutone’s own mental state does not constitute waiver.39 On theother hand, having one’s own mental health professional testify

37 Meteer, 2003 WL 1084650, *3 (holding that the wife did not waive thepsychotherapist-patient privilege and the physician-patient privilege by filing amarital dissolution petition and requestingchild custody and agreeing to a pri-vate psychological custody evaluation); M.M. v. L.M., 55 A.3d 1167, 1176 (Pa.Super. Ct. 2012); Gates v. Gates, 967 A.2d 1024, 1030 (Pa. Super. Ct. 2009). Seealso Cabrera, 580 A.2d at 1234 (deciding that specific releases did not operateas a blanket waiver of privilege); Peisach, 539 So.2d at 546 (holding that thecustodial parent’s agreement to submit to a psychological examination renderedthe testimony of parent’s psychiatrist, who treated the custodial parent sevenyears before, unnecessary); Care and Protection of M.C., 94 N.E.3d 379, 392(Mass. 2018) (holding that the mother’s introduction of psychiatric evidence atthe care and protection trial did not serve as a waiver of her right to assert thepatient-psychotherapist privilege at a subsequent criminal trial); Clark, 371N.W.2d at 753 (determining that the fact that a litigant seeks custody of a childin a dissolution of marriage proceeding does not result in making relevant infor-mation contained in the file cabinet of every psychiatrist who has ever treatedthe litigant). But see Feuerman v. Feuerman, 447 N.Y.S.2d 838, 841 (N.Y. Sup.Ct. 1982) (ruling that by agreeing to a stipulation to referral for psychologicalstudy and evaluation, parties to custody proceedings may waive any objectionto unlimited access to certain portions of confidential reports and supportingdata).

38 In re Marriage of Trepeck, No. D048190, 2007 Cal. App. Unpub.LEXIS 2187 at *19 (Mar. 20, 2007) (the father sought to subpoena the mother’spsychotherapist based on a waiver of privilege after the mother permitted thecourt-appointed evaluator to contact her psychotherapist and obtain privilegedinformation for the purposes of the evaluation; the trial court found that thisauthorization did not result in a broad waiver of her privilege); In re Marriageof True, 16 P.3d 646 (Wash. Ct. App. 2000) (holding that the statutory privilegebetween counselor and patient prohibited discovery of the former husband’sten-year-old mental health records, in post-divorce proceedings to resolve childcustody dispute, though the parties had authorized release of certain informa-tion in the order appointing a guardian ad litem, where the authorization al-lowed release of the parties’ mental health information only to the guardian adlitems, guardians were ordered to maintain confidentiality of the records, andthe former wife demonstrated no relevance to her perceived need to have therecords).

39 Culbertson, 455 S.W.3d at 139-40.



as to mental state waives privilege and opens the door to cross-examination.40

Finally, acts that may or may not constitute a waiver of privi-lege must be examined on a case by case basis, with due regard towhether the parent’s privacy interests41 should give way to thecustody determination.

ConclusionAs it now stands, fifty states, plus the District of Columbia,

plus four U.S. territories, plus federal law, means there are fifty-six definitions of a guardian ad litem and its duties. Because fam-ily law is an area of law uniquely entrusted to the states,42 there isno reason to believe this will change without adoption by everystate of a uniform law.43

What can and should happen, however, is that a guardian adlitem should make his or her function absolutely clear to all thoseinvolved in the custody case. There should be no “blanket waiv-ers” handed to parents when the guardian ad litem begins his orher investigation. Rather, a complete and knowing waiver for

40 Roper, 336 So.2d at 657 (ruling that if the wife had offered the testi-mony of her treating psychiatrist to prove her mental condition, the patient-psychiatrist privilege would have been waived and the husband on cross-exami-nation could then have inquired as to any relevant communications between hiswife and her psychiatrist); Gil v. Gil, 2003-Ohio-180, 2003 WL 132447 (OhioApp. Jan. 26, 2003) (holding that the wife waived privilege by filing a counter-claim seeking child custody and by introducing into evidence letters from hertreating physicians); Com. ex rel. Romanowicz v. Romanowicz, 248 A.2d 238(Pa. Super. Ct. 1968) (deciding that where the wife in custody proceeding notonly consented to, but actually sought introduction of, the testimony of her psy-chiatrist relating to her own examination and such testimony would have beensubject to cross-examination, the court erred in refusing to allow the wife tointroduce testimony of the psychiatrist relating to such examination).

41 Jaffee, 518 U.S. at 15 (stating that a psychotherapist-patient privilegewill serve a public good transcending the normally predominant principle ofutilizing all rational means for ascertaining truth).

42 “The regulation of domestic relations is traditionally the domain ofstate law.” Hillman v. Maretta, 569 U.S. 483, 490 (2013), citing In re Burrus, 136U.S. 586, 593–94 (1890).

43 Uniform Representation of Children in Abuse, Neglect, and CustodyProceedings Act, 42 FAM. L.Q. 1 (2008) (defining roles and duties of a “child’sattorney” and a “best interests” attorney). To date, no jurisdiction has adoptedthis Act.



each and every physical and mental health professional should beprovided and explained to a parent, upon a court determination,after hearing and fact findings, that such a waiver is necessary forthe particular case.

Finally, and most importantly, if mental health is at issue,the first resort of the court should be a court-ordered examina-tion, where it is clear that there is no privilege.44 If mental healthis in issue, the first resort should be a court-ordered exam, whichis not privileged. As noted by a Florida court,

We recognize that in a child custody case the mental health of aparent may be a relevant issue. Where this issue is raised the trialcourt must maintain a proper balance, determining on the one handthe mental health of the parents as this relates to the best interest ofthe child, and on the other maintaining confidentiality between atreating psychiatrist and his patient. The court in this case has an alter-nate tool which may accomplish both purposes. Upon proper motionthe court may order a compulsory psychiatric examination.45

Selected factors that might compel such an exam would be apast history of mental health issues that resulted in private orcourt-ordered evaluations or therapy; a history of domestic vio-lence; a history of parental alienation. Only if the court-ordered

44 E.g., M.M., 55 A.3d at 1175 (holding that the “preferred method” isthrough an evaluation and that the privilege is waived only to specific records);Kinsella, 696 A.2d at 583 (ruling that courts must look first for informationfrom a court-appointed evaluator or one hired by the partys); Kinsella, 696A.2d at 584 (requiring the court to examine “whether all other sources of infor-mation available to the court are adequate to justify adjudication of the custodyand visitation issues without resort to the plaintiff’s therapy records); Cabrera,580 A.2d at 1233 (the “most appropriate” source of information regarding aparent’s mental health is to hire an expert for litigation rather than obtainingthe parties’ mental health records from a treating therapist); Husgen v. Stussie,617 S.W.2d 414, 416-17 (Mo. Ct. App. 1981) (holding that the proper source ofpsychological information regarding a parent in a child custody proceeding is amental examination rather than by piercing the psychologist-patient privilege);Simek, 172 Cal. Rptr. at 568-69 (preferring a court-ordered mental examina-tion over piercing the psychotherapist-patient privilege in a child custody pro-ceeding); Perry v. Fiumano, 403 N.Y.S.2d 382, 386-87 (N.Y. App. Div. 1978)(requiring a showing that the information gleaned from an evaluation is inade-quate to resolve a child custody issue); Barker, 440 P.2d at 139 (declining tohold that the psychological-patient privilege was waived automatically in childcustody litigation, indicating that a court-ordered psychological examinationwas the proper avenue to obtain this data).

45 Roper, 336 So. 2d at 656-57.



exam is inadequate should the guardian ad litem be allowed topierce the privilege, and only upon a showing that the records ortestimony sought is essential to the presentation of the child’sbest interests. In this way, the expectations of confidentiality rec-ognized by the Supreme Court and relied upon by individuals intherapy can be meaningful.

Guardians Ad Litem: Confidentiality and Privilege

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